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A class of more than 9,000 Department of Justice lawyers is entitled to years of overtime pay, a federal judge has ruled. U.S. Court of Federal Claims Judge Robert Hodges Jr. ruled that under the Federal Employees Pay Act, the nation’s prosecutors and regulatory enforcers are entitled to overtime, even though he doesn’t necessarily agree that they should be. “Plaintiffs are in this court to vindicate their rights under that law,” Hodges wrote in an order released late Thursday. “Though one may speculate on the effects of an award of back pay in this case, including possible changes in procedure, or its impact on professionalism in the department, those issues are beyond the scope of this court’s jurisdiction.” The ruling sets the stage for the next phase in the 4-year-old suit. If the parties don’t agree to a settlement, either the DOJ will appeal the case or Hodges will commence damages proceedings. “The decision of Judge Hodges vindicates the right of federal employees to receive overtime pay as federal law requires,” said Williams & Connolly partner Robert Van Kirk, a lawyer for the class. “We look forward to working with the Department of Justice to promptly establish a fund that fully compensates our clients for their overtime work.” DOJ spokesman Charles Miller would say only that the department was reviewing the decision. Hodges suggested the parties resolve the case by establishing a fund, leaving it to the class to divvy up the money. The cost to the government could easily run into the millions. A DOJ lawyer who works an average of five overtime hours per week would be entitled to thousands of dollars in back pay for each year at the department. The attorneys did not argue that they were ordered to work overtime, but that it was expected of them in order to meet deadlines. Under FEPA, which did not exempt lawyers, federal employees are entitled to overtime pay or compensatory time for working extra hours. Though the government argued that it wants to treat lawyers professionally without requiring them to work set hours as long as they finish their work, Hodges rejected that argument. “We agree entirely with this statement and commend it,” Hodges wrote. “For the purposes of this litigation, however, it is irrelevant.” Former Assistant U.S. Attorney Rory Little, a professor at the University of California’s Hastings College of the Law, has been an outspoken critic of the suit. Though he said he believes the lawyers are right on the law, he believes the suit will hamper professionalism and dedication. He said he sympathized with career prosecutors who make relatively low pay, but criticized attorneys who use the DOJ as a springboard to a “cushy” law firm partnership and still seek redress. He also said exceptions will have to be made in the crafting of any settlement. “You cannot do a trial in a 40-hour work week. Anyone who’s done the job knows that,” Little said. Assistant U.S. Attorney William Shockley, past president and current secretary of the National Association of Assistant U.S. Attorneys, said the decision will help keep good prosecutors in the office. Many, he said, leave for greener pastures. “NAAUSA, on behalf of its members, is going to continue to work to equalize its benefits with other employees in federal law enforcement,” Shockley said. Paralegals and support staff, as well as FBI agents, do get paid overtime. Shockley said 68 percent of Assistant U.S. Attorneys leave government between their sixth and 15th years of service, just when they’re becoming journeymen prosecutors. “As federal prosecutions get more complicated, we need to have a greater number of experienced prosecutors staying on board,” he said. The decision does not affect prosecutors at the highest government pay scales, who are exempt under FEPA.

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